In Praise of Treachery: The Relevance of Prior Judicial Experience

JURIST Guest Columnist Robert Schapiro of Emory University School of Law says that lacking judicial experience, White House counsel Harriet Miers may find it difficult to demonstrate the independence from executive power appropriate for a Supreme Court justice...

Amid the debates over Supreme Court nominee Harriet Miers, a simple fact stands out. She has never been a judge. Is concern about this notable gap in her resume justified? Yes, but mainly because it raises questions about whether she has a sufficient capacity for treachery.

Chief Justice John Marshall, Justice Joseph Story, Justice Robert Jackson - this and similar lists of eminent Supreme Court Justices without prior judicial experience have become ubiquitous in recent days. President Bush himself cited Justice Byron White (appointed by a Democratic President) and Chief Justice William Rehnquist as more recent exemplars of those whose judicial careers commenced on the highest court in the land. The point is clear. History demonstrates that prior judicial experience is not a necessary prerequisite for distinguished service on the United States Supreme Court.

At some level, the claim seems unassailable. The argument could be expanded by noting Justices with only brief service on the bench. John Marshall Harlan II sat on the court of appeals for less than a year before his elevation. For that matter, current Chief Justice John Roberts served for only two years on the court of appeals before his nomination to the Supreme Court.

So is the clamor about Harriet Miers' lack of judicial experience misplaced? Yes and no.

These historical arguments suggest the limited relevance of the past judicial service itself. Finding a good set of black robes is not difficult. It does not take long to get used to sitting through oral arguments without unseemly grimaces (though some never learn the skill) or to figure out how best to use law clerks.

Mastering the Chevron doctrine or the automobile exception to the warrant requirement takes more time, but that too is manageable. Moreover, other legal jobs involve grappling with some of the complex matters that come before the Supreme Court. The briefs also help.

Service on the bench, though, does relate to arguably the most significant qualification for serving on the United States Supreme Court, a commitment to independence.

The office of Justice of the United States Supreme Court is one of the most honored positions in our republic. Only a person of colossal arrogance could fail to feel deeply, deeply grateful to the President who nominated her. Yet the judicial role commands such ingratitude.

One of the most important functions of the Supreme Court is to say "no" to the President. The Court stands as a principal barrier against executive usurpation.

The Court's docket changes over time. Abortion or the Ten Commandments may or may not be central issues in the decades to come. The subject of executive power, however, has shown remarkable longevity. From Marbury v. Madison in 1803 through the illegal combatant detention cases last year, the Supreme Court has played a critical role in reviewing assertions of Presidential prerogative. Judicial scrutiny of the War on Terror stands as just the current variation on a longstanding theme. Can a nominee reject the President's claim of necessity when the Constitution so requires?

As Presidents change over time, rebuffing the pleas of successive executives may become easier. But long after Presidents depart, their agenda may live on. Indeed, at least since John Adams, Presidents have looked to the judiciary as a way to entrench their policies against the vagaries of electoral politics.

Can a nominee be counted on to decide a case without reference to the views of her patron? Can a nominee be trusted to bite the hand that fed her?

What evidence can one have about the answer to such a question? Much of the work of practicing lawyers demands zealous advocacy of a client's position; loyalty, not independence, is the coin of the realm. Good lawyers must retain their professional judgment, but attorneys seek to realize the goals of their clients.

Prior service as a judge does not guarantee independence, but it helps. Judges exist in a culture that prizes independence. In other words, they pride themselves on betraying their friends. Particular judicial decisions also may demonstrate a nominee's independence, or lack thereof.

Perhaps more significantly, the initial appointment to a lower court may itself indicate--or create--an independent status in the legal community that might conduce to an independent approach on the high court. From this perspective, the fact of prior appointment, rather than the length of service, is key. Well-connected friends are useful (aren't they always), but federal judges who owe their jobs to connections are more likely to be indebted to Senators, not Presidents. Like their initial appointment, their further elevation to the Supreme Court generally reflects something other than closeness to the Chief Executive.

Does prior judicial experience provide a perfect measure of independence? Absolutely not. The 1952 Steel Seizure case posed the question of how rigorously the Supreme Court would review President Truman's assertion of executive authority, justified in part by the claimed necessities of the Korean War. Of President Truman's four nominees then sitting on the high court, the two appointed with prior judicial service (Chief Justice Vinson and Justice Minton) supported the President, while the two without such experience (Justices Burton and Clark) joined the majority in rejecting the President's actions.

By the same token, some non-judicial positions can offer proof of independence. Prosecutors and other government lawyers often have the opportunity to demonstrate their commitment to the rule of law in the face popular or political pressure.

Judicial experience is not critical, but some indicator of independence is.

Justice Robert Jackson stands as the prime example of the independent Justice who came to the Court with governmental, but not judicial, experience. Justice Jackson served as Solicitor General and Attorney General in the Roosevelt Administration. Five Justices participated in both the Steel Seizure case and in the infamous Korematsu decision in 1944, which affirmed the detention of United States citizens of Japanese ancestry. Of these five, only Justice Jackson rebuffed the claims of executive power in both cases, thus biting the hand of President Roosevelt who appointed him and of President Truman, Roosevelt's Vice President.

Seeking to cloak himself in this mantle of independence, John Roberts asserted that Justice Jackson was one of the Justices he most esteemed, and he cited Jackson's turning the tables on the executive as a prime justification for his admiration. With Roberts' extensive career in the Justice Department and his established role in the Supreme Court bar (in addition to his two years on the bench), he could lay a plausible claim to this Jacksonian tradition. Roberts' service as a "grand clerk" to Jackson provided symbolic resonance. (Roberts clerked for Justice Rehnquist who clerked for Justice Jackson.)

Can Harriet Miers make the same claim? The White House Counsel generally functions as a more traditional advocate. Further complicating matters for Miers, President Bush's allies have defended her nomination by citing her loyalty to the President. Such personal loyalty is a political virtue, but not a judicial one.

For his part, President Bush vouched for the type of jurist Harriet Miers would be. He promised that she would be "a good conservative judge". If the law so requires, will she be willing to issue an opinion that would run contrary to at least some perceptions of what that phrase means? Will she be capable of the Jacksonian double-cross?

Perhaps, but the evidence for such a disloyal streak is not readily apparent. Some sign of a treacherous heart would be reassuring.

Robert Schapiro is a law professor at Emory University School of Law, where he teaches constitutional law and federal courts.
--------

About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments.
JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org